Nihal Mohammed Kamal Brake & Anor. v Geoffrey William Guy & Ors.

Permission to enforce a moratorium debt under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 may be granted only where three cumulative conditions are satisfied: enforcement is reasonable; it will not be detrimental to the relevant debtor; and it will not significantly undermine the moratorium’s protections.

Detriment is not confined to financial loss and may include physical or psychological harm. The assessment is fact-sensitive and depends on the evidence. The court retains a further judicial discretion even after all three conditions are met. The fact that enforcement is nearly complete, requires little or nothing from the debtor, and concerns an asset already unavailable to the debtor may be decisive.

The defendants sought permission under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 to complete enforcement of a third-party debt order requiring the second claimant to draw down a pension and apply it towards a costs judgment.

The first claimant subsequently entered a mental health crisis moratorium. Because the underlying debt was joint, the moratorium prevented further enforcement against the second claimant without permission. The defendants’ application was opposed on the basis that enforcement would cause psychological detriment and undermine the moratorium’s safe-haven protection. The central issue was whether the statutory conditions for permission, and the court’s residual discretion, were satisfied.

1. Application allowed. Permission was granted under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 to complete enforcement of the third-party debt order.
2. Regulation 7(5) imposes three cumulative thresholds. The court must consider whether the proposed step is reasonable, whether it will be detrimental to the debtor, and whether it will significantly undermine the moratorium’s protections. Only if all three thresholds are met does the court obtain a discretion to grant permission. The decision is fact-sensitive, not mechanistic (paras [53]-[58]).
3. Reasonableness is a separate question from detriment and undermining. The fact that enforcement is nearly complete is irrelevant if either of the latter thresholds fails, but becomes relevant to reasonableness once those thresholds are satisfied. The extent of the debtor’s required involvement is also relevant: onerous or time-consuming steps are less likely to be reasonable (paras [55]-[56], [72]-[74]).
4. “Detriment” is not confined to financial detriment. In the context of a mental health crisis moratorium, physical or psychological detriment may suffice. Whether detriment exists is an evaluative question requiring appropriate evidence. An occupational therapist may give relevant evidence within the scope of the therapist’s expertise, although the opinion is not conclusive and must be assessed with the evidence as a whole (paras [57]-[65]).
5. The proposed enforcement would not be detrimental to the first claimant. The pension had already been frozen by the interim order and could not become available to either claimant. Enforcement would reduce their joint liability, would require no action by the first claimant, and the clinical evidence failed to address the true position or provide a sufficiently reasoned basis for the asserted harm (paras [75]-[84]).
6. The protection of the first claimant’s moratorium would not be significantly undermined. The enforcement concerned the second claimant’s asset, involved only limited remaining steps, and did not affect other eligible debts or require action by the first claimant. Lees v Kaye was not applicable because it concerned a different statutory issue and did not justify an exceptional-circumstances gloss on regulation 7(2)(b) (paras [68]-[71], [85]-[87]).
7. All three conditions being satisfied, the court exercised its discretion to grant permission. The deliberate delay in complying with the third-party debt order, so that the first claimant could enter a moratorium before enforcement was completed, was a relevant consideration (paras [66]-[67], [88]-[89]).

First-instance decision. The judgment records earlier decisions in related proceedings, but this application was determined by the High Court on paper.